In this presentation, for want of space, I will deliver points briefly….

During the 15th century, Sabah together with Sarawak were vassals of the Sultan of Brunei. Then in 1658, Sultan of Brunei gave Sultan of Sulu gave the north east coast of Borneo in return for his help in settling a civil war dispute between the Sultan Abdul Mubin and Pengeran Bongsu.

During the early 1870s, the east coast of Sabah was under control of the Sultan of Sulu – Philippine Islands, who also ruled what is now the southern Philippines. The first European settlement in the area was founded by William Clarke Cowie, a Scottish gun smuggler from Glasgow, who received permission from the
Sultan of Sulu & Sabah North Borneo to establish a small trading base. Cowie called his settlement Sandakan, which in Tausug (Sulu) means “the place that was pawned”, but it soon came to be known as “Kampung German” after the large number
of Germans who also set up posts there. The settlement was part of the lease Austro- Hungarian consul Baron von Overbeck acquired from the Sultan of Sulu & Sabah North Borneo in 1878.

Sabah or North Borneo and the island of Palawan were bestowed as gifts to the Sultan of Sulu by the Sultan of Brunei in 1658 in gratitude for the assistance of the Sultan of Sulu to avert a civil war in Borneo. Thus, since that time Sabah became a property of
the Sultan of Sulu and the Sultanate of Sulu.

In 1878, HM Sultan Jamalul Ahlam Kiram (Sultan of Sulu and Sabah) as the legitimate owner leased Sabah to a British company of Gustavus Baron de Overbeck and Alfred Dent for their use and their heirs or assigns but the Lease prohibits the transfer of Sabah to any nation, company or individual without the consent of the Government of the Sultan of Sulu..

THE PHILIPPINES CASE FOR ARGUMENT

During the tenure of President Macapagal, the formation of Malaysia was strongly opposed by the Philippines government. In the Philippines perspective, the transfer of Sabah by Great Britain to Malaysia in 1963 constituted a breach of the provisions of the 1878 Lease as the Government of the Sultan of Sulu did not consent to the transfer to Malaysia. As a point in law, Sabah must and should be returned to the Lessor as
owners (the Sultan of Sulu and the Sultanate of Sulu).

The Philippine government argues that Overdeck and Dent (the leasors) did not acquire sovereignty or dominion over North Borneo. This is because, according to international law, sovereignty can be ceded only to sovereign entities (e.g. government to government agreement) or to individuals acting for sovereign entities (agreement between leaders of nations). Obviously, Overbeck and Dent were private
citizens of their respective countries who did not represent any sovereign entities, but instead acted as mere businessmen who only acquired grant of lease from the Sultan of Sulu. Hence, neither of them did not, and could not, acquire sovereignty or
dominion.

GREAT BRITAIN IGNORE USA REMINDERS

It was on historical records that in 1906 and 1920 the USA did cautiously reminded Britain that Sabah might be a case of lease and thus the state must not be subject to any transfers. But Great Britain, after considering her sovereignity and interest chose to ignore this advice and in fact in 1963 Britain decided that after the UN referendum conducted by the Cobbold Commission in 1962, Britain felt that it was best to transfer Sabah and made it as one entity which finally formed the Federation of Malaysia…

THE PHILIPPINES FAILED IN IT’S APPLICATION TO INTERVENE BEFORE THE ICJ

The Philippines had for years strenously argued over it’s claim for Sabah. This is so much evident during one case before the International Court of Justice between Malaysia and Indonesia in year 2001 over the disputed islands of Sipadan and Ligitan even though Philippines was not a party but it applied and seek to intervene… So much so that when the Philippines presented oral arguments before the International Court of Justice (ICJ) in its Application for Permission to Intervene in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan between Malaya and Indonesia in 2001, Philippines seeked to put the records on her claim to Sabah. However the ICJ dismissed the Philippines application to intervene and to be made a third party thus the Philippines application was unsuccessful….

( to be continued in Part 2 later on – for lack of space )

In Part 2, I shall present the Sulu perspective on their claim over Sabah and finally the Malaysia’s case and perspective which is compliance with ICJ’s standards )

The writer of this article is a session court judge. He may be contacted at his facebook address